When a couple in Virginia gets married, it is possible that both spouses owned property in their own name before they wed. In general, separate property remains the property of the spouse that owned it prior to the marriage. Therefore, if the couple divorced, each party’s separate property would not be subject to property division, unlike property acquired during the course of the marriage (marital property).
However, unless care is taken, it is entirely possible for separate assets to “commingle” with marital assets. Through commingling, it becomes impossible to track which assets are marital and which are separate. Thus, the separate assets will convert to marital assets, and would be subject to property division.
But, there are steps a spouse can take to keep separate assets separate. One thing to do, prior to getting married, is execute a prenuptial agreement. In such a document, each party can clearly state which property is to remain separate. Also, spouses should keep a written record of the separate property and how it is handled during the course of the marriage. Keeping separate property in a separate account can also help prevent comingling.
If a person wants to buy something during the course of the marriage that they wish to keep separate, they should use separate property to do so. Keep in mind that if one’s partner pays for a portion of the asset or even plays a role in maintaining the asset, that asset may be considered marital, not separate.
Finally, it is important to understand that if the value of the separate asset goes up during the course of the marriage, that increase may be deemed to be a marital asset, subject to property division. But, it may make a difference if the uptick in value is “passive” or “active.” Passive appreciation is that which happens without any action on the party’s part, such as an uptick in value due to inflation. Active appreciation is that which happens due to some sort of action on the party’s part, for example maintaining a piece of real estate.
In the end, it is important to take the steps necessary to keep separate assets separate, if the owner of the asset does not wish for that asset to become marital property. Protecting such assets can have a significant impact on property division in the event of divorce.
Source: FindLaw.com, “Managing Marital Property: Do’s and Don’ts,” accessed on Jan. 22, 2018
